(m) 4 State Tr. 105. 1 St. Tr. 601. 2 State Trials, 743, 744. Layer's Case, 6 St. Tr. 245. Townley's Case, Foster, 7.63. (n) Co. Litt. 156. As to the first particular, viz. How jurors may be challenged peremptorily : Having premised that the prisoner must take all such challenges himself, (m) even in such cases wherein he may have counsel; † and also that before any juryman is brought to the book, the prisoner by leave of the court may have the whole panel once called over in his hearing, that he may take notice who do and who do not appear, in order the better to enable him to take his challenges; I shall endeavour to shew, 1. In what cases a peremptory challenge is allowable. 2. How many jurors may be so challenged. As to the first particular, viz. In what cases a peremptory challenge is allowable. Sect. 5. I take it to be agreed, that a peremptory challenge was allowable by the common law in all (n) capital cases both indictments and (0) appeals, and also in (p) misprision of upon high treason. 9 H. 5.7. Ab. F. Challenge, 72. B. Challenge, 50. 14 H. 7. 7. B. Chall. 74, 75.211. 3 H. 7. 2. (p) 3 Inst. 27. But in no other case that is not capital, 2 State Trials, 254. But it was enacted by 33 Hen. 8. c. 23 s. 3. “ That it should "not be allowed in any cases of high treason, or misprision of high treason." Nor do I know that any statute hath revived it to the latter of these; for it is said, that the statute of 1 Philip and Mary, c. 10. which, by restoring the old course of the com(p) 3 Inst. 227. mon law as to trials of treason, has revived (p) such challenges as to treason, doth not (q) extend to misprision of high treason. S. P. C. 157, 158. 1 Anderson, 107, 108. Co. Lit. 156. 2 State Trials, 764, &c. But this is made a quære, Savil, 57. (9) Yet 3 Inst. 27 a. it is said, that for misprision of treason one may peremptorily challenge, 35. (r) F. Chal. 153. 165. (s) S. P. C. 163. Yet the same point is made a quare, S. P. C. 158. (t) Co. Lit. 157. (u) Sum. 259. (2) Co. Lit. 156. Cromp. 114. 9 H.5.7. 14 H. 7.7. Sect. 6. It hath been anciently (r) adjudged, and is holden. both by (s) Staundforde and (t) Coke, that a man shall have the same peremptory challenges on an issue joined upon collateral matter alleged in avoidance of an outlawry for a capital crime, as he may on the general issue: but the contrary is holden by (u) Hale, and is said to have been (y) adjudged in the case of Okey and Berkstead (1). But the other books which report the same case take no notice of this point. 1 Sid. 7. As to the second particular, viz. How many jurors may be challenged peremptorily. Sect. 7. It seems to have been the settled (z) rule of the' common B. Chall. 70. 74, 75. 217. 19 E. 4. 33. S H. 7. 2. Ab. B. Chall. 211. 17 Assize, 6. 17 Ed. 3. 23. Ab. B. Chall. 105. Trial per Pais, c. 9. S. P. C. 157, 158. See the books cited, c. 30. s. 2. Lamb. b. 4. c. 14. says, that it was doubtful at common law how many might be challenged. (1) Charles Ratcliffe had been convicted of high treason; and in B. R. Mich. 20 Geo. 2. upon a collateral issue that he was not the same person, a peremptory challenge was insisted on, and refused by Chief Justice Lee. Vide Foster, 42. Johnson's Case, ibid. 46. and Hargrave's Co. Litt. 157, note 8. common law, wherever such challenge was allowed, to suffer the prisoner to challenge as many as he thought fit under the number of three full juries, i. e. not amounting to more than thirty-five. But if a criminal challenge more than that number, (a) it seenis (a) Sup. c. 30. the more prevailing opinion, that he is to be dealt with as one that stands mute. s. 2. 217. Sect. 8. By 22 Hen. 8. c. 14. s. 7. made perpetual by $2 (b) B. Chall. Hen. 8. c. 3. "No person arraigned for any petit treason, mur- 2 Hale, 260.269. "der or felony, shall be admitted to any peremptory challenge 3 Inst. 227. "above the number of twenty." But it seems (b) agreed, Vide supra, s. 5. that 1 and 2 Philip & Mary, c. 10. which restores the course of the common law as to trials of treason, has revived the old S. P. C. 158. challenge of thirty-five in trials of petit treason. and c. 25. s. 132. 134. Co. Litt. 156. s. 19. Sect. 9. It seems to have been holden by Sir (c) Edward Coke, (c) 3 Inst. 227. that he who challenges more than twenty upon an arraignment (d) Vide c. 30. of felony, since the abovementioned statute of 22 Hen. 8. shall Stand. Prer. 46. (d) neither forfeit his goods, nor have judgment of death, nor of (e) Sum. 260. pain forte et dure, but shall only be over-ruled as to his challenges 270. 345. 399. so far as they exceed twenty, and put upon his trial. But this 270. 345. 399. (f) Cromp.114. seems to have been doubted by Sir Matthew (e) Hale, and the (g) Sup. c. 33. contrary is holden by (f) Crompton, and seems more agreeable s. 32. 45.48. 59. 64. 66. 69, &c, to the most natural construction of 22 Hen. 8. which seems to (h) Vide sup. c.) have intended no alteration as to the nature or effect of peremp- 33. s. 27. 36. tory challenges, but only as to their number. To which may be 11 Coke, 31, 32. added, that nothing is more common than for (g) subsequent statutes, which take from felons the benefit of clergy, (h) expressly to exclude those who challenge more than twenty, which would be needless if their challenge were only to be over-ruled, and did not subject them to judgment of (i) death, &c. 35. S. P. C. 126. The words of the challenge, &c." the evident construction of which is, that any further challenge shall be disallowed or prevented, and being null from the beginning and never in fact a challenge, it can subject the prisoner to no punishment, but the juror shall be regularly sworn. 4 Com. 348. As to the second particular, viz. How jurors may be challenged for cause. F. Chall. 128. State Trials, 235. 2 R. Ab. 659. Sect. 10. Having premised, that it is a (k) general rule, that () Co. Lit. 158. wherever (1) the king is a party, as he is in every (m) indictment, and in some sort also in (n) appeals of felony, he who takes a challenge for cause must shew it presently, and shall not have S. P. C. 162. time till the panel is perused, as the king shall where he takes a 38 Assize, 22. challenge; as hath been more fully shewn, sect. 3; and having 1 Siderfin, 244. Cont. 19 Assize, also farther premised, that after a prisoner hath challenged a 6. juror for cause, and his cause hath been disallowed, or found Ab. B. Chall. against him, he may (0) challenge the same juror peremptorily, 107. before he is (p) sworn; (1) Except in inquests, F. Chall. 105. 107. 2 R. Abr. 659, 660. (m) That cause must be shewn presently on indictments, Coke Litt. 158. 1 Siderfin, 244. 1 H. 5. 1. Ab. F. Challenge, 70, Skinner, 82. (n) That cause must be shewn presently in appeals, Coke Litt. 158. This is left a quare, S. P. C. 162. (0) Coke Litt. 158. 37 H. 6. 8. Ab. F. Chal. 48. B. Chal. 86. Con. 10 H. 4. 9. Ab. F. Chal. 180. (p) Vide sup. s. 1. I shall endeavour to shew, 1. What shall be a good challenge of a juror, in respect of his honour or insufficiency. 2. What 2. What in respect of his indifferency. And FIRST, As to the challenge of a juror for his honour or insufficiency. Having premised, that it is agreed to be a good challege of (9) Co. Lit. 156. this kind that a juror is an (9) alien, (r) a minor, or a (s) villein; Theloal. b. 1. c. 6. s. 14. 14 H. 4. 19. B. Challenge, 48. F. Challenge, 91. 2 R. Ab. 656. Calvin's case, 18. b. (r) Coke Litt. 157. 172. Litt. s. 259. Vide 7 and 8 Will. 3. c. 32. (s) 2 R. Ab. 657. Co. Litt. 156. 9 Edw. 4. 16. 26 Assize, 28. F. Chall. 135. B. Challenge, 64. 118. But the contrary is holden in the Year Book of 10 H. 7. 20. Ab. B. Challenge, 220. and a quare by the reporter and Brook. 48 Ass. 6. 48 Ed. 3. 30. B. Chall. 18. 37.209. Dyer, 314, 35 H. 6. 46. Moor, 767. Reg. 179. F. N. B. 165. I shall more fully endeavour to shew, 1. Where peerage is a good cause of challenge. 2. Where the want of freehold is a good cause of challenge. 3. Where infamy is a good cause of challenge. 4. Whether old age, sickness, or non-residence in the county, be, in any case, a good cause of challenge. As to the first particular, viz. Where peerage is a good cause of challenge. Sect. 11. It is (t) agreed, that if a peer be returned on a jury and bring a writ of privilege, he shall be discharged. Also it seems to have been (u) holden, that even without such a writ he may either challenge himself, or be challenged by the party. Quare. (u) 22 E. 3. 18. F. Chall. 119. 2 R. Ab. 646. but his notes are not warranted by the books at large. Co. Litt. 157. 9 Coke, 49. 27 H. 8. 22. Con. 35 H. 6. 46. B. Challenge, 8.. Finch, 506. 6 Coke, 53. F. Chall. 44. 1 Jones, 153. F. N. B. 166. Vide 3 Bac. Ab. 260. (v) Admitted by the statute of 21 Edw. 1. de his qui ponendi sunt in assisis, and by the Re As to the second particular, viz. Where the want of freehold is a good cause of challenge. Sect. 12. At the common law there was no (v) necessity that jurors should have any freehold as to inquests before justices in eyre, or in cities or burghs, as hath been more fully shewn, chap. 25. sect. 21. gister. Vide Raymond, 485, 486. 1 Ventris, 366. Infra, sect. 21. (1) Keilw. 46. 54. 92. See the citations letters, Litt. s. 464, and 2 R. Ab. 647, 648. Also it seems (x) agreed, that the common law doth not require that a juror should in any case have a freehold of any certain value; and upon this ground it hath been adjudged, that a freehold worth but (y) twenty shillings or (2) five shillings, or even a (a) penny, is still a sufficient qualification for a juror in such cases as are not within the statutes which require a freehold of a greater value. B. Chall. 189. 19 H. 6.9. 10 H. 6. 18. B. Chall. 192. (b) 28 Ass. 15. Ab. F. Challenge, 32. B. Chall. 60. 2 H. 7. 13. B. Challenge, 152. (z) 3 H. 4. 4. Ab. F. Chall. 78. B. Chall. 32. (a) Keilway, 46. Also it hath been (b) adjudged, that the common law did not Ab.B.Chal.106. require that a jury should in any case have any freehold. 10 H. 7. 13. 3 State Trials, But 135 to 140. Vide 16 H. 7. 14. 7 H. 6. 44. Ab. F. Chall. 24. B. Chal. 57. It seems to be holden, that by the common law it is a challenge only to the favour. But this is not only contrary to what seems implied by all the authorities above cited, which, in saying that the common law did not require a freehold of any certain value, plainly seem to suppose that it required some freehold, but it hath been also contradicted by many express (c) authorities; agreeably to which it (e) Cro. Eliz. seems to be (d) settled at this day, that the want of freehold is a 413. good challenge of a juror in all other cases not otherwise provided for by (e) statute, and consequently in a trial for high treason in London, as well as in any other county. Trial per Pais, c. 9. 3 H. 4. 4. Ab. F.Chal. 78. B. Chall. 32. 4 H. 4. 1. Vide Keilw. 54. Coke Litt. 156, 157. 2 R. Ab. 647. 7 H. 4. 1. Ab. B. Challenge, 34. F. Challenge, 58. 21 H. 7. 29. Ab. B. Chall. 90. 10 H. 7. 11. It seems taken for granted that issues in all cases are to be returned upon jurors, by which it seems to be implied that they ought to have land, &c. (d) 3 State Trials, 869. 4 State Trials, 874. 6 State Trials, 58. 245. sect. 19, &c. (e) Vide infra, Sect. 13. But it seems agreed, that wherever the letter of the common or statute law requires that a juror should have a freehold, the meaning is fully satisfied by his having the (f) use of a (ƒ) Keilw. 46. freehold, and that it is not material whether he hath it in his own 92. or his (g) wife's right, or whether it be (1) absolute or upon con- Dyer, 9. dition, or an estate of inheritance, or only (i) for term of one's own 13 H.7.7. or another's life, so that it be in the same (k) county, wherein the 5 Edw. 4. 7. suit is brought, and actually continue in the juror (1) till the time B. Chall. 165. when he is sworn. F. Chall. 27. Co. Litt. 272. 15 H. 7. 13. S. P. C. 160. B. Jurors, 14. (g) F. Chall. 27. 9 H. 7. 1. B. Chall. 157. 12 H. 7. 4. 160. Co. Litt. 156. (h) Co. Litt. 156. Keil. 167, 168. 2 R. Ab. 648. Con. 7 H. 4. 1. 158. But Bro. in abridging this case in title Challenge, 53. says quod mirum. (i) 9H.7.1. B. Chall. 160. Co. Litt. 156. B. Chall. 157. See F. N. B. 14. 16. (k) 9 H. 7. 1. B. Co. Litt. 157. Rastal, 18. 19 H. 6. 9. (1) 12 H. 7. 4. B. Chall. 160. Coke Litt. 157. Ab. F. Challenge, 158. B. Chall. F. Chall. 12 H. 7. 4. Chall. 157. 7 H. 4. 1. Sect. 14. But the (m) statutes of Westminster the second, c. 58. (m) Vide c. 25. and 21 Edw. 1. de his qui ponendi sunt in assisis, "None shall be s. 21, 22. 30. put in assizes or juries, except in cities, burghs, or trading 66 " towns, who have not tenements to the yearly value of forty shillings, &c. 28 Assize, 15. But it seems to have been (n) generally agreed, that a juror can (n) 2 Inst. neither be challenged by the parties for being returned contrary 448. to these acts, nor allege such matter himself for his discharge, Ab. B. Chall. but must take his remedy by action against the sheriff, or by writ 106. of privilege for his discharge. F. Chall. 78. F. N. B. 166. 2 St. Tr. 744. But 38 Assize, Sect. 15. By 2 Hen. 5. c. 3. " No person shall be admitted to " pass in any inquest upon trial of the death of a man, nor in any "inquest betwixt party or party in plea real, nor in plea personal, "whereof the debt or the damage declared amount to forty marks, if the same person have not lands or tenements of the 66 3 H. 4. 4. "value of forty shillings (0) above all charges of the same; so (0) Extended by "that it be challenged by the party, that any such person so im- 27 Eliz. c. 6. to panelled in the same cases, hath not lands or tenements of the yearly value of forty shillings above the charges as afore is "said." 41. 16 H. 7. 14. Sect. 16. It hath been (p) adjudged, that this statute extends (p) Keilw. 92. as well as to a collateral issue, as to the general one, but not to 2 R. Ab. 647, an 648, 66 (9) C. Elfz. 413. an indictment or information for a crime not (q) capital: for the Raym.485.586. words are, upon trial of the death of a man, nor in any inquest "between party and party in plea real or personal, &c." (r) Vide sup. s. 13. (s) Keilway, 92. in an abridg- Sect. 17. It seems (r) agreed, that cestuy que use of any freehold in the same county of the yearly value of forty shillings is a good juror within this statute. And some have (s) holden, that the law is the same as to a feoffee of such lands in trust for another, or a (t) remainder-man of state of freehold expectant on a release for years. But this seems not to be maintainable, because the statute, in requiring that a juror shall have lands of the yearly 15 H. 7. 13. pl. value of forty shillings above all charges, plainly seems to intend that he ought to have lands of the clear (u) income whereof at the time he can expend so much; but a man cannot expend any thing out of lands whereof he is enfeoffed to the use of another, or wherein he has only a dry remainder. Year Book of 1. But I do not find this point in the book at large. (t) Keilw. 168. (u) Vide Keilw. 92. 18 Edw. 4. 13. 19 H. 6. 9. F. Chall. 32. 36 H. 6. 23. 2 R. Ab. 647, 648, 649. (x) 3 St. Tr. 135 to 140. (y) Vide c. 25. s. 132. 142, 143, 144. Vide 1 Rich. 3. Sect. 18. It hath been (x) adjudged, that this statute is repealed as to treasons by 1 (y) and 2 Philip & Mary, c. 10. which enacts, "that all trials for treason shall be according to the common law." Sect. 19. By 23 Hen. 8. c. 13. it is recited," That trials of "murders and felonies in cities, boroughs, and towns corporate "within this realm, having authority to proceed in the deliverance of such offenders, had been oftentimes deferred and delayed, by reason of challenge of such offenders, for lack of sufficiency of freehold, to the great hinderance of justice;" and thereupon it is enacted, "That every person and persons, being the king's "natural subject born, which either by the name of a citizen, or "of a freeman, or any other name, doth enjoy and use the liber"ties and privileges of any city, borough or town corporate where "he dwelleth or maketh his abode, being worth in moveable goods and substance to the clear value of forty pounds, be "admitted in trial of murders and felonies in every sessions and "gaol-delivery, to be kept and holden in and for the liberties of "such cities, boroughs and towns corporate, albeit they have no "freehold; any act, statute, use, custom or ordinance to the contrary hereof notwithstanding." Sect. 20. "Provided that this act no way extend to any knight "or esquire dwelling, abiding, or resorting in or to any such city, " &c." Sect. 21. By 11 Hen. 7. c. 21. and 4 Hen. 8. c. 3. special provision is also made for jurors in London in real and personal actions above the value of forty marks, for which I shall refer to the statutes at large. Sect. 22. By 4 and 5 Will. & Mary, c. 24. " All jurors (other "than strangers upon trials per medietatem lingua) who are to be "returned for trials of issues joined, in any of the courts of king's "bench, common pleas or exchequer, or before justices of assize " or nisi prius, oyer and terminer, gaol-delivery, or general "quarter-sessions of the peace in any county of this realm of "England, |